Tag: Free speech

Free Speech and Child Custody in Massachusetts

Free speech and child custody are in the news as people discover they can’t say a lot of things after their child custody battle ends. A recent Massachusetts appeals court just decided whether some typical child custody order restrictions violated free speech laws.

custody free speech

Chilling Speech

In a Massachusetts court, a Father filed a complaint for custody, support and parenting time, seeking custody of the parties’ child. The Mother counterclaimed and a temporary custody order was entered.

A few months later, the family judge entered its own temporary order relating to exchanges of the child, telephone calls and exchanging addresses. After the final hearing, the court ordered joint legal custody and nearly equal timesharing for both parents.

The order also contained numerous restrictions on both parents’ speech. Although the court’s order appears to have the best interest of the child at heart, prior restraints on speech are very serious constitutional violations.

The order restrained the parents from making any disparaging or negative comments of any type of nature whatsoever to one another by telephone, text or email or to any other third person, to include the child and/or disparaging comments relative to one another electronic social media. The order also prohibited the parents from discussing legal proceedings with the child.

Florida Child Custody and Speech Restrictions

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. Florida courts have to balance a parent’s right of free expression against the state’s parens patriae interest in assuring the well-being of minor children.

In Florida, there have been cases in which a judge prohibited a parent from speaking Spanish to a child. A mother went from primary caregiver to only supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered:

“Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. The Mother was also bipolar and convicted of two crimes.

The appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children. In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

Stirring the Constitutional Speech Beanpot

The appellate court in Massachusetts reversed the speech restrictions because a number of – fairly typical speech provisions for a child custody order – placed an impermissible restraint on the mother’s speech and interfered in her child rearing.

The court found the family judge failed to provide specific findings to justify a compelling State interest in placing restrictions on the mother, or to explain why the limitations were necessary to protect the compelling interest.

Prior restraints are “extraordinary remedies,” and are “permissible only where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there are no alternative, less restrictive means to mitigate the harm.”

A prior restraint will not be upheld unless it is “justified by a compelling State interest to protect against a serious threat of harm,” and the limitation on speech is “no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint.”

Although the judge clearly was attempting to reduce future conflict between the parties in fashioning the judgment as he did, he failed to provide specific findings justifying the State’s interests in the restraints imposed; instead he simply stated that the orders were made in “the best interest of the … child,” which alone is not enough to justify a prior restraint on speech.

The Massachusetts appellate opinion is here.

 

Free Speech and Domestic Violence

In family law, when a cyberstalking complaint consists of social media posts, free speech and domestic violence can clash. In a recent case, a domestic violence court prohibited one Florida lawyer’s social media comments about the other lawyers in her case.

Cyberstalking

Injunction Junction

Florida lawyer Ashley Krapacs filed a petition for a domestic violence injunction against her ex-boyfriend and represented herself at the DV hearing. Attorney Russel J. Williams represented her Ex.

After Krapac lost the hearing, on jurisdictional grounds, she wrote an article about the opposing lawyer, saying that he lied to the judge on the record during these proceedings. As a result, Williams hired his own attorney, Nisha Bacchus, to sue Krapacs for defamation.

Krapacs responded by writing several social media posts disparaging the new lawyer, Bacchus, with personal insults for representing Williams in the defamation suit against her.

Then Krapacs created a blog post which claimed Bacchus filed a frivolous lawsuit against her, accused her of being a bully, and included a vulgar insult. She tagged Bacchus in more posts and hurled insults at Bacchus and her law firm and identified the car Bacchus drove.

In one of her final Facebook posts, Krapacs stated she was going to connect with Bacchus’s former clients to sue her for malpractice. Bacchus sought to stop this by filing a petition for an injunction, alleging Krapacs was cyberstalking her.

The DV judge entered the injunction and limited Krapacs’ use of her office space since both Krapacs and Bacchus had offices in the same building. The judge also prohibited Krapacs from posting on social media about Bacchus and ordered her to take down all the offending posts about Bacchus.

Krapacs appealed.

Family Law and Free Speech

I’ve written about free speech in family law before. Family courts have a lot of power to protect children, and that can involve restraints on free speech. Speech can be enjoined under our domestic violence laws.

Domestic violence injunctions prohibiting free speech are subject to constitutional challenge because they put the government’s weight behind that prohibition: a judge orders it, and the police enforce it.

Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

Domestic violence can also mean cyberstalking. Cyberstalking is harassment via electronic communications. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.

A credible threat means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm.

Cyberstalking and Free Speech

The appellate court felt Krapacs’ actions did not qualify as cyberstalking because they did not constitute a pattern of conduct composed of a series of acts over time evidencing a continuity of purpose.

Retagging in social media posts for four hours constituted, in the court’s view, one instance of qualifying conduct under the statute. The other acts Bacchus complained of were deemed to be constitutionally protected and did not qualify as additional instances of repeated stalking.

The court also found that the injunction prohibiting Krapacs “from posting Nisha Bacchus, Nisha Elizabeth Bacchus or any part thereof, on any social media or internet websites, and requiring her to take down all social media and internet posts that reference Nisha Bacchus was overbroad.

While the appellate court held that her comments could not be subject to an injunction, it did find that Krapacs was not immune from civil liability for her actions and could face money damages.

Then there’s the Florida Bar, which then filed an emergency suspension petition against Krapacs. The Bar viewed her social media tweets, posts and comments as arising out of the opposing lawyers’ representation of clients who were litigating against her.

The Bar called Krapacs strategy “terrorist legal tactics” and felt it was prejudicial to the administration of justice.

After a hearing, the referee recommended a two-year suspension from the Florida Bar. The Florida Supreme Court reviewed the case, disapproved of the two-year suspension, and instead disbarred her.

The opinion is here.